Disparate Impact and the Unity of Equality Law
55 Pages Posted: 10 Feb 2016 Last revised: 21 Jul 2016
Date Written: 2016
This Article offers a new theory of disparate impact liability. This theory emerges from and advances a unified account of employment discrimination law as a whole. Like disparate treatment and non-accommodation, disparate impact claims target a distinctive injury to individuals: suffering workplace harm because of one’s race, sex, disability or other protected status. That injury of “status causation” offends basic commitments to equality and individual freedom. Rather than focusing on employers’ decision-making processes or on social hierarchy between groups, this approach draws directly from statutory text emphasizing causation and individual harm.
A disparate impact claim’s statistical comparison of group outcomes provides evidence that individuals have suffered status causation. Group outcomes are constructed by aggregating individual outcomes. Disparities between group outcomes can emerge only if many individual group members suffer harm because of their protected status (status causation). But not all group members suffer this injury; it is spread unevenly within the group. The statistical evidence demonstrates that some individuals suffered discrimination’s injury, but not which individuals.
Highlighting intra-group variation explains fundamental but otherwise perplexing features of disparate impact doctrine. Refusing to treat group members as interchangeable explains the structure of the prima facie case, including its rejection of any “bottom line” defense based on aggregate workforce composition. Also noted are other significant implications for remedies and for the relationship between employment discrimination law and redistributive social policy. In each case, the focus is one those individuals who have suffered status causation, not necessarily a group as a whole.
Keywords: Employment discrimination law, disparate impact liability, antidiscrimination jurisprudence
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